Publishing executive David Pecker lost the
right to gain control of davidpecker.com in a case judged by the
WIPO Arbitration and Mediation Center. It found that Pecker failed
to demonstrate that he had rights to the name davidpecker.com other
than "broad assertions".
The domain name is currently held by a Mr
Ferris of California. The domain name redirects traffic to a
'parking' service at sedo.com, where adverts are displayed based on
keywords and the domain name owner is paid for clicks. The page for
davidpecker.com displayed pornographic adverts. "This is because
the word ‘pecker’ is within the domain name, and Sedo.com uses that
as a keyword to try and display relevant ads," Ferris told the
arbitration panel. 'Pecker' is a US slang term for penis.
The two parties had attempted to negotiate a
sale of the domain, with Pecker's lawyer initially offering $100
for the address. He was told that the only acceptable starting bid
was $1,000, and was later offered the domain for $1,600. "That
offer was rejected and negotiations continued until [Ferris]
demanded $15,000 in order for him to forgo registering other domain
names with the name ‘Pecker’," said Pecker's submission to the
panel.
In order to gain control of a domain a person
or company has to prove three things. They have to show that the
domain is the same or confusingly similar to a trade mark or
service mark in which the person has rights; that the other party
has no legitimate interests or rights in the domain, and that it
was registered or is being used 'in bad faith'.
In order to gain control of a domain you must
fulfil all three conditions, so if the Panel finds one step which
you fail it rarely considers the other two.
The Panel found that Pecker could not show
that he had a trade mark or service mark right in the name David
Pecker, so could not gain control of the domain. Other Panels had
found in the cases of famous people that being famous, and
therefore trading under your name, did sometimes qualify for that
step.
"In this case, Complainant has provided no
evidence of his rights in the Disputed Domain Name other than broad
assertions that he 'is known nationally and internationally by the
name David Pecker and his high profile name is linked inextricably
with AMI and is cited frequently by the media', and an affidavit
from AMI’s assistant general counsel that Complainant 'possesses a
strong common law service mark in his name by virtue of his
position as being one of the leaders in the publishing industry',"
said the ruling.
"The Complaint does not provide any exhibits
showing Complainant’s use of the name as a trademark. Nor has
Complainant provided any evidence other than the cited statements
that the name is being used for trade or commerce," it said.
"In light of the above, the Panel is not
convinced, based on the limited record before it, that Complainant
has established rights in the name “David Pecker” for the purpose
of this proceeding. Therefore, the Panel finds that Complainant has
not succeeded in proving the first element of the Policy."
The Panel conceded that the issue is complex,
and had come up many times before. "A number of disputes under the
Policy have involved personal names, as here, and the panels’
decisions have been mixed on the issue of whether the complainants
have rights in the names," it said, referring to a previous case
involving Tom Cruise which found that Cruise did have rights in his
name.
The Panel said that Pecker was free to pursue
his case through the courts, where the Anticybersquatting
Consumer Protection Act could provide him with a course of
action.
